2007 Supreme(Bom) 712

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(N.A. Britto, J.)
ASHOK BAMPTO PAGUI - Applicant.
vs.
AGENCIA REAL CANACONA PVT. LTD. and another -Respondents.
Cri. Rev. Appln. No. 56 of 2006
Decided on 8-6-2007

Headnote:Criminal Procedure Code, 1973 - Section 401 - Revision - Against judgment of conviction and sentence under Section 138 of Negotiable Instruments Act - Complaint filed by one of Directors of complainant company - Maintainability of - Accused in-charge of their shop - Issued a cheque of Rs. 71,850/- to complainant - Dishonoured by Bank for want of insufficient funds - No Resolution nor any power at attorney filed along with complaint to effect that said Director was authorized by complainant company to lodge complaint - An individual Director not empowered to act on behalf of company - Complaint not filed by company - No process can be issued - Revision petition succeeds - Judgment of Courts below set a side - Accused acquitted. - A Director, as an individual Director, has no power to act on behalf of the company. He is only one of a body of Directors called the Board of Directors and alone he has no power except such as may be delegated to him by the Board of Directors or given to him by the articles of association of a company. In the case at hand, the complaint was filed by one of the Directors and as already stated b y a Director who had initially complained to the police that the subject cheque was forged by the accused, and, without any resolution of the company or any authorization from the Board of Directors. The view held by Court is consistent with the views expressed in the decisions referred to herein above, namely, those of the Madras High Court in Ruby Leather Exports v. K. Venu, (supra), Andhra Pradesh High Court and Delhi High Court which is now confirmed by the view held by the Apex Court in Dale and Carrington Invt. (P) Ltd. and another v. P.K. Prathapan and others, (supra) and therefore, Court holds that the complaint in this case was not filed by the company as required under clause (a) of Section 142 of the Act and on such a complaint no process could have been issued much less a conviction imposed. The said ’P ’ could not have filed the same merely in his capacity of a Director. He had to file the same only with authorization from the Board of Directors. As a result, the revision petition deserves to succeed. Consequently, the judgments of both the Courts below are hereby set aside and the accused acquitted under Section 138 of the Negotiable Instruments Act, 1881.

       Negotiable Instruments Act, 1881 - Sections 138 and 142(a) - Dishonour of cheque - Complaint by one of directors of company - No authority to lodge complaint - Complaint not filed by company as required under Section 142(a) of Act - No process can be issued on such complaint - A director can file complaint alongwith authorization from Board of Directors of company - Revision succeeds - Judgments of Courts below set aside - Accused acquitted under Section 138 of Act. - In the case at hand, the complaint was filed by one of the Directors and as already stated by a Director who had initially complained to the police that the subject cheque was forged by the accused, and without any resolution of the company or any authorization from the Board of Directors. The view held by Court is consistent with the views expressed in the decisions referred to herein above, namely, those of the Madras High Court in Ruby Leather Exports v. K. Venu, 1995 (82) Company Cases 776 (Mad), Andhra Pradesh High Court and Delhi High Court which is now confirmed by the view held by the Apex Court in Dale and Carrington Invt. (P) Ltd. and another v. P.K. Prathapan and others, 2005 (1) SCC 212 and therefore Court holds that the complaint in this case was not filed by the company as required under Clause (a) of Section 142 of the Act and on such a complaint no process could have been issued much less a conviction imposed. The said Shri Prashant Shirodkar could not have filed the same merely in his capacity of a Director. He had to file the same only with authorization from the Board of Directors.

       Negotiable Instruments Act, 1881 - Sections 138 and 142(a) - Dishonour of cheque - Complaint by one of Directors of company - Director not authorised to lodge complaint - No resolution for - Complaint must be by payee or holder in due course - Initially no authority to file complaint on behalf of company - Still company, at any stage can rectify that defect - Complaint maintainable - Cannot be quashed on this ground. - In the present case the only eligibility criterion prescribed by Section 142 is that the complaint must be by the payee or the holder in due course. This criterion was satisfied as the complaint was in the name and on behalf of the appellant company. The Apex Court also referred to its another decision in Associated Cement Co. Ltd. v. Keshvanand, 1997 DGLS 1587 : (1998) 1 SCC 687, wherein it was held that the complainant has to be a corporeal person who is capable of making a physical appearance in the Court. It was held that if a complaint is made in the name of an incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the Court. It is held that the Court looks upon the natural person to be the complainant for all practical purposes. It was held that when the complainant is a body corporate it is the dejure complainant and it must necessarily associate a human being as de facto complainant to represent the former in Court proceedings. It was also held that no Magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. It was held that there may be occasions when different persons can represent the company. It has been held that it is open to the dejure complainant company to seek permission of the Court for sending any other person to represent the company in the Court. Thus, even presuming that initially there was no authority still the company can, at any stage, rectify that defect. At a subsequent stage the company can send a person who is competent to represent the company. The complaints could thus not have been quashed on this ground.